Abstract

Section 25(1) of the Constitution of the Republic of South Africa, 1996 provides that no one may be deprived of property except in terms of law of general application and that no law may permit arbitrary deprivation. In First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 4 SA 768 (CC), the Constitutional Court explained that a deprivation of property will fall foul of section 25(1) either when there is insufficient reason for the deprivation (as further explained in that decision) or if the deprivation is procedurally unfair. Nothing further is said in that decision about procedurally unfair deprivation. In subsequent case law the Constitutional Court picked up on the distinction between substantively and procedurally arbitrary deprivation, without making it clear when a deprivation will be procedurally unfair or how procedural unfairness in terms of section 25(1) should be distinguished from procedural unfairness in terms of section 33 or PAJA. The author argues that the notion of procedurally unfair deprivation of property in terms of section 25(1) only makes sense to the extent that it refers to deprivation of property that does not result from administrative action. Consequently, deprivation of property brought about by administrative action should in the first place be adjudicated in terms of PAJA and not in terms of section 25(1) and only deprivation of property that occurs outside of the sphere of PAJA should be adjudicated in terms of section 25(1). However, as the author argues, the test for section 25(1) procedural unfairness will in any event probably resemble the PAJA test.